U.S. escalates ethics battle with judge in immigration case

Posted Sat, June 4th, 2016 9:51 am by Lyle Denniston

Escalating its constitutional battle with a federal judge over the ethics of government lawyers in the major test case on presidential power over immigration, the Justice Department late Friday night asked a federal appeals court to swiftly nullify the judge’s order of sanctions. In a massive filing of nearly four hundred pages, the department also asked that the judge’s order be put on hold while it is being challenged in the U.S. Court of Appeals for the Fifth Circuit.

This new conflict between the Obama administration and U.S. District Judge Andrew S. Hanen of Brownsville, Texas, is separate but related to the case that the Supreme Court is expected to decide this month on the legality of the immigration policy that the president announced in November 2014; it has not gone into effect. If the government wins in that case, its lawyers told the Fifth Circuit, that would undermine a key part of Judge Hanen’s ethics order — a part that would affect some 50,000 young undocumented immigrants.

Meanwhile, four of those individuals who have been given extensions to stay and work in the U.S. filed their own request in the Fifth Circuit Court to set aside the part of the ethics order that applies to them. They asked the Circuit Court to rule quickly next week, so they could seek help if turned down — presumably by turning to the Supreme Court. (The details of their filings are discussed at the end of this post.)

The Brownsville judge is the one who blocked enforcement of the new immigration policy in February of last year, leading ultimately to the government’s appeal now before the Supreme Court. Last month, the judge handed down his order to punish the government for what he found to be intentional ethical misconduct in his court by two Justice Department lawyers when the immigration case was before him earlier.

On Tuesday, the department told Judge Hanen of its plan to appeal his ethics mandate, and asked him, in the meantime, to stay that order. The judge’s only action so far on that request was to schedule a hearing for next Tuesday on it. The twenty-six states that challenged the administration policy have not yet filed their own views on this new development, but they earlier had supported sanctions. They opposed the requests filed on Friday, the government said.

In moving on to the Fifth Circuit Friday night, the government did not ask that court to take any immediate action before the Tuesday hearing in the Brownsville court. But, if Judge Hanen has not himself blocked his ethics order by 1 p.m. (Eastern) on Wednesday, it urged the Fifth Circuit to impose a stay while it weighs whether to lift the sanctions order.

The large file of papers submitted to the Fifth Circuit included a petition for mandamus seeking to have the ethics order set aside, a motion for a stay until the mandamus plea is decided, and — if there is no stay — a request for an administrative delay while the stay plea is considered. Review of the mandamus plea should be expedited if no delay is granted of the Hanen order, the government suggested.

In addition, demonstrating that the government was using every legal maneuver it had to challenge Judge Hanen on the ethics question, it notified the Fifth Circuit that it believed that the merits of the ethics orders are now subject to an appeal, which the government will also be filing.

Even without that separate appeal, however, the petition for mandamus sought to lay before the Fifth Circuit the full scope of the government’s complaint against Judge Hanen in the controversy over ethics. It included details of the Justice Department’s version of the events that led Judge Hanen to find ethical violations, and explained the potential impact of the ethics order. It argued that the ethics dispute arose mainly from misunderstandings between the judge and the lawyers about just what was at stake, and not from a ploy by government lawyers to mislead the court.

The filings contended that the judge had no basis for his order (1) finding any ethical violation, let alone an intentional one; (2) imposing any sanctions without advance notice of just what they would be and a chance to contest them; (3) imposing broad new ethical training obligations on some 3,000 Justice Department lawyers, thus unconstitutionally intruding on the Justice Department’s management of its own employees; (4) imposing requirements on those attorneys as they appear in any court, federal or state, in any of the twenty-six states that had sued in the case, since his authority to deal with ethics extends only to cases directly in his court; and (5) ordering the government to hand over a vast amount of personal data about some 50,000 young undocumented immigrants who were given an extra year of deferral of potential deportation under the new policy, thus intruding on those individuals’ privacy and disrupting the government’s management of immigration policy.

The filings noted that the objecting states had not raised any complaint about a third year of deferral for the youths who received that benefit, even as they did object to broader criteria of eligibility for young immigrants to other benefits — including work permits. The judge, the government added, had no basis for finding that the states were in any way harmed by the claimed ethical misconduct, or would gain anything from the sanctions.

The government lawyers said that, if the Supreme Court were to rule in favor of the government in the pending case of United States v. Texas, either by ruling that the states had no right to sue or by ruling that the new policy is legal, that would make unnecessary the part of the Hanen order requiring disclosure of personal data about the young immigrants.

Judge Hanen had ordered the government to turn over that information by June 10 — next Friday — as part of the remedy for the attorneys’ statements to the judge that the changes in immigration policy for young immigrants would not be put into effect until the judge had a chance to decide whether to block the entire 2014 policy as it affected the youths as well as the broad new policy of deferral of deportation of adult undocumented immigrants.

Because that June 10 deadline is imminent, the government told the court of appeals, there is an urgent need for the Fifth Circuit to impose a delay by no later than Wednesday noon (1 p.m. Eastern).

Four individuals who are among the 50,000 who received extensions of permission to stay and work in the United States asked the Circuit Court on Friday to set aside the part of the Hanen order that requires the government to supply personal identifying information about them. They noted that they are not parties to the case, and that they would not have their own right to appeal on the merits of Judge Hanen’s order so they had to seek the extraordinary remedy of mandamus.

Like the federal government, they filed a petition for mandamus and a request for a stay of the Hanen order on personal data disclosure. Since that data is supposed to be filed by next Friday, the four individuals asked that the Circuit Court decide on their challenges by Wednesday so that they “may seek further review if necessary” — apparently, an indication that they would go on to the Supreme Court if the Circuit Court were to turn them down.

Arguing that the disclosure requirement violates their constitutional right of privacy, and exposes them to identity theft and the potential for harassment or violence by anti-immigrant groups, the four — two who were identified and two who are seeking to remain anonymous — contended that Judge Hanen had no authority to involve them personally in the controversy between the federal government and the twenty-six states.k Their personal data, they contended, has nothing to do with the ethical problems the judge found.

Each of the four gained the right to remain in the country for two years under a 2012 program of the Obama administration, and sought extensions when those permissions were about to run out in the fall of 2014. After the new Obama administration policy was announced, they applied for and received three-year extensions. Those extensions not only allow them to remain for that period, but also to have work permits during that time.

The four noted that the states challenging the Obama policy have not sought to have the extensions undone as part of their request for delay of enforcement of the 2014 policy provisions.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.